RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-04633

            COUNSEL:  NONE

            HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

      1.  He be directly promoted to the grade  of  lieutenant  colonel  (Lt
Col) as if selected by the Calendar Year 2007B  (CY07B)  Lieutenant  Colonel
(Lt Col) Central Selection Board (CSB).

      2.  In the alternative, he receive SSB consideration for promotion  to
the grade of Lt Col by the CY07B Lt Col CSB.

      3.  He be given the opportunity to include a letter to the SSB.

________________________________________________________________

APPLICANT CONTENDS THAT:

In  a  four-page  statement,  with  attachments,  the  applicant  makes  the
following major contentions:

      1.  His successful appeal to have his most recent officer  performance
report (OPR) removed from his record left him with a gap in his  record  for
the 12 month period leading up to the CY07B Lieutenant Colonel CSB and  only
two OPRs in his record as a major (O-4).  He appealed the OPR on  the  basis
that it reflected neither his performance nor his potential to serve in  the
higher grade, but rather  a  personal  bias  based  on  extreme  personality
conflict between  him  and  his  supervisor.   Additionally,  the  Promotion
Recommendation Form (PRF) that met the board was written  and  processed  by
the same rater that wrote the appealed OPR.

      2.  He believes that missing an OPR for the period  before  the  board
caused him to have no documentation of his performance and  responsibilities
at that critical point and served  to  undermine  the  Air  Force  promotion
process and deprived him of a fair look by the board.

      3.  While he understands that a special selection board (SSB)  is  the
preferred method of correcting irregularities with promotion board  results,
he would like to request direct promotion in lieu of an SSB.  The  inclusion
in his record of only a Letter of Evaluation stating he was  not  rated  for
the period of the contested OPR virtually precludes any  correction  to  his
record that could provide an accurate  assessment  of  his  performance  and
accomplishments during his second year as primary Air Attaché’  and  in  the
12 months preceding the board.

In support of  his  appeal,  the  applicant  provides  a  statement  with  7
attachments.

The applicant’s complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in  the  grade  of  major.
He has four nonselections to the grade of lieutenant colonel  by  the  CY07B
(27 Nov 07), CY08B (8 Sep 08), CY09B (8 Jun 09), and CY10B (8 Mar 10).

The applicant’s 18 Apr 07 officer performance report was  removed  from  his
records by the Evaluations Reports Appeals Board (ERAB).

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AIR FORCE EVALUATION:

AFPC/DPSOO  recommends  denial  of  the  applicant’s  request   for   direct
promotion. However they believe,  as  an  alternative,  the  most  fair  and
practical remedy for the Board is to grant SSB consideration  by  the  CY07B
Lieutenant Colonel CSB in order to allow the applicant to include  a  letter
to the CSB that complies with the letter writing  guidelines  in  effect  at
the time of the original board.

A direct promotion would be  unfair  to  all  other  officers  who  were  in
similar situations and also did not get promoted.

DPSOO states they cannot  speak  to  the  gap  created  in  the  applicant’s
records by his successful appeal of his OPR.  However,  they  can  speak  to
the fact the promotion board members had  before  them  a  complete  officer
selection  record  (OSR),   which   documented   his   accomplishments   and
recognitions for his entire 14 years and 5 months career preceding  his  in-
the-promotion zone board.  It appears the applicant focuses on one  year  of
the entire career as the single underlying factor for his  nonselection  for
promotion by this board.

The complete AFPC/DPSOO evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides  the  following  response  to  points  in  the  DPSOO
advisory opinion:

      1.  Regarding the assertion the promotion  board  members  had  before
them a complete OSR which documented his  accomplishments  and  recognitions
for the entire 14 years and 5 months career preceding his  original  in-the-
promotion zone board, the applicant notes that while the  board  had  before
them his complete record, the record  of  the  last  12  months  immediately
preceding the board was reduced to an LOE that stated  “Not  rated  for  the
above period [19 Apr 06 -18 Apr 07].”  That period marked what was  to  that
point in his  career  the  height  of  a  career  long  trend  of  excellent
performance with ever higher levels of responsibility.

      2.  One significant issue the advisory  opinion  did  not  acknowledge
was his PRF, which was written by the same rater who wrote  the  biased  and
appealed OPR.  As with the OPR, there is no  practical  option  for  him  to
have the PRF corrected.  If that PRF were to meet an SSB, he would still  be
at a major disadvantage.  The alternative option of removing the  PRF  would
again leave him in a position where his partial record is competing  against
the complete records of his peers.

       3.  In  most  cases  he  would  agree  with  implied  assertion  that
secretarial directed promotion is  less  fair  than  an  SSB.   However,  in
certain cases, such as  when  actual  corrections  to  the  record  are  not
possible, but rather the offending  document  is  simply  removed  from  the
record and other biased information remains,  an  SSB  will  not  afford  an
equal and fair comparison on which to base a  decision  to  promote  or  not
promote.  The applicant provides  an  example  of  a  case  when  the  Board
determined that direct promotion was the only way to rectify  the  injustice
an applicant had experienced.  His record cannot  be  fixed  or  made  whole
again.

      4.  Finally,  the  applicant  addresses  his  three  nonselections  as
pointed out by the advisory opinions.  Following his  initial  nonselection,
his record did meet  two  other  promotion  boards  with  the  same  gap  in
performance with the same result.  He attributes this fact to the  continued
irregularities in his record as well as the  stigma  associated  with  being
passed over for promotion shortly after arriving at his new unit.  The  PRFs
for those subsequent boards were reaccomplished each time by  a  new  rating
chain, however, even with no aberrations in his record,  it  is  clear  that
once  passed  over,  overcoming  that  stigma,  while  not  impossible,   is
extremely difficult.

He does not want to oversell his record, and it  is  not  his  intention  to
diminish the promotion process or take anything  away  from  his  colleagues
who competed and were selected for promotion during his IPZ board.   He  has
sustained a strong record of  performance  reflecting  breadth,  depth,  and
unique skills that have  enhance  his  effectiveness  in  every  assignment.
He’s   demonstrated   consistent   growth    in    both    leadership    and
responsibilities, and he’s successfully  delivered  on  major  projects  and
tasks at a consistently high level throughout his career.  He has  no  doubt
that his promotion and subsequent service as a Lt Col would serve the  needs
and the interests of the Air Force.

The applicant’s complete response is at Exhibit D.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  error  or  injustice  warranting  favorable  action  on   the
applicant's request for a  direct  promotion  to  the  grade  of  lieutenant
colonel, as if selected by the CY07B Lt Col CSB.  In this respect,  we  note
that officers compete for promotion under the whole person  concept  whereby
a multitude of  factors  are  carefully  assessed  by  the  selection  board
members  prior  to  scoring  the  record.   In  addition,  officers  may  be
qualified but - in the judgment  of  selection  board  members  vested  with
discretionary authority to score  their  records  -  may  not  be  the  best
qualified of those available for the limited number of promotion  vacancies.
  Consequently,  a  direct  promotion   should   be   granted   only   under
extraordinary circumstances; i.e.,  a  showing  that  the  officer's  record
cannot be reconstructed in such a manner so as to permit him/her to  compete
for promotion on a fair and equitable basis;  a  showing  that  the  officer
exercised due  diligence  in  pursuing  timely  and  effective  relief;  and
lastly, that had the original errors not occurred, the  probability  of  his
being selected for promotion would have been  extremely  high.   We  do  not
find these factors in this case.  Therefore, we agree with the opinions  and
recommendations of the Air Force offices  of  primary  responsibilities  and
adopt their rationale as the basis for  our  conclusion  the  applicant  has
failed to sustain his burden of proof that he has been the victim of  either
an error or injustice.

4.  With regards to his allegations that gaps in  his  records,  the  stigma
associated with being passed over for promotion and the PRF prepared by  his
rater  harmed  his  promotion  opportunities,  we  disagree.   We  find  his
allegations  lack  specificity  and  note  the  applicant  has  provided  no
evidence  showing  he  was  inequitably  treated  in  comparison  to   other
similarly situated officers.  Further, the applicant directs  our  attention
to AFBCMR 2003-00343 in  which  a  previous  Board  determined  that  direct
promotion was the only way to correct the  injustice.   We  note  that  each
case before this Board is considered on its own merits, and  precedent  does
not bind us.  While we do strive for consistency  in  the  manner  in  which
evidence is evaluated and analyzed, we are not bound to recommend relief  in
one  circumstance  simply  because  the  situation  being  reviewed  appears
similar to another case.  Notwithstanding, we have reviewed the  case  cited
by the applicant and are not persuaded that it supports his  assertion  that
he has been the victim of an error or injustice.

5.  Finally, we also disagree with  DPSOO’s  alternative  recommendation  to
grant the applicant SSB consideration in order to allow  him  to  include  a
letter to the CSB.  While the applicant alleges his OPR was  removed  within
two weeks of the promotion board, we do not find he has  met  the  criterion
of due diligence we normally hold an applicant  too,  nor  has  he  provided
sufficient evidence documenting any attempts to write the  Board,  as  such,
we do not believe an opportunity for an SSB is warranted.  In  view  of  the
foregoing and in  the  absence  of  persuasive  evidence  by  the  applicant
showing that, based on the totality of the information in his  records,  the
duly  constituted  selection  board  was  unable  to   make   a   reasonable
determination concerning his promotability in  relation  to  his  peers,  we
find no basis on which to favorably consider this application.

6.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues  involved.  Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  the  application  was
denied without a personal appearance; and that the application will only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2009-
04366 in Executive Session on 15 Sep 10, under the  provisions  of  AFI  36-
2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2009-04366 was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 09, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSOO, dated 17 Feb 10.
    Exhibit C.  Letter, SAF/MRBR, dated 19 Mar 10.
    Exhibit D.  Letter, Applicant, dated 19 Apr 10.





                                   Panel Chair